S. 63 Of Copyright Act Is Cognizable Offence, Police Can Register FIR On Receipt Of Complaint: Karnataka High Court

Justice M Nagaprasanna said,

"Merely because a separate provision under Section 64 of the Act which depicts power of search and seizure by the Police is also found in the statute, it does not take away cognizability of the offence punishable under Section 63 of the Act."

It added, "In a given case, the competent criminal Court can sentence an offender under Section 63 of the Act to three years imprisonment. Exact three years is a possibility in a given circumstance. Therefore, it would fall under Item No.2 of Schedule II of the Cr.P.C."

Case Background

The petitioner, ANI Technologies Private Limited (also known as Ola Cabs) and its Directors Bhavish Aggarwal and Ankit Bhati had approached the court calling in question registration of FIR against them under Section 63 of the Copyright Act.

As per the prosecution case the petitioners who run Ola cabs launched a feature in their cabs/taxis where television/display sets are fixed to the headrest of the front seat where popular songs are played. This feature is known in the cabs circle as Ola play and such cabs are known as Ola Prime.

Noticing that several of the contents of music videos and songs belonging to several of the films whose music copyrights the 2nd respondent (Lahari Recording Company) owns were being displayed in Ola Prime cabs under the feature Ola play and on the ground that Ola cabs are indulging in commercial exploitation of copyright of the music whose copyright is owned by the 2nd respondent without purchasing such copyright registered a complaint on 13-05-2017.

On registration of the said complaint before the Additional Commissioner of Police, investigation is directed to be conducted and an FIR came to be registered in Crime No.191 of 2017 alleging offences punishable under Sections 63 and 64 of the Act.

Petitioner Submissions:

Senior Advocate C.V.Nagesh, appearing for the petitioners submitted that Section 63 of the Act is a non-cognizable offence and once it is held to be a non-cognizable offence. Police had no jurisdiction to investigate the matter.

Further, the complaint itself does not make out any offence of infringement of copyright as the entire complaint narrates that the complainant believes that copyright is violated and in criminal jurisprudence there had to be evidence and documentation and not the belief of the complainant.

Complainant opposed the plea:

Advocate M.S.Shyam Sundar appearing for the complainant contended that Section 63 cannot but be held to be a cognizable offence as the offence is punishable for a period up to 3 years and any offence punishable upto 3 years in terms of Schedule to the Code of Criminal Procedure,1973, it becomes a cognizable offence and if it is a cognizable offence, no fault can be found in the investigation conducted.

Further, it was said that commercial exploitation of the copyright that is held by the complainant cannot be permitted as identical agreements are entered into between the petitioners and the other net-work whose copyright they have.

Court findings:

The court relied on the objects and reasons mentioned for amending Section 63 of the Copyright Act in the year 1984, wherein the maximum offence punishable was changed from one year to three years. Further it relied on section 155 of the Criminal Procedure code which pertains to information as to non- cognizable cases and investigation of such cases by the police.

The issue was that when the offence is punishable with imprisonment for 6 months to 3 years or with fine only, whether such an offence would become cognizable or non-cognizable.

Relying on a plethora of judgments passed by different High Courts, the Court said,

"On a coalesce of all the aforesaid interpretation of law, what would unmistakably emerge is, if the imprisonment which is capable of being imposed for a maximum period of exact three years, would be cognizable and non-bailable."

The court refused to accept the reliance placed by the petitioners on the judgment passed by the Bombay High Court in the case of Subhash Choudhary v. Deepak Jyala & Ors., and that passed by the Andhra Pradesh High Court in Amarnath Vyas v. State of AP.

The court observed, "Both the afore-quoted judgments, while interpreting section 135(1)(ii) of the Customs Act, were following the judgment rendered in the case of Rajeev Chaudhary v. State (NCT of Delhi), rendered by the High Court of Delhi in the context of Section 167 of the Cr.P.C...The language in Section 167 of the Cr.P.C. has no manner of application on its juxtaposition with Section 63 of the Act. The provision is entirely different from Section 63 of the Act."

Following which the court held,

"On a cumulative analysis of the Act and the judgments rendered by various constitutional Courts what would unmistakably emerge is, Section 63 of the Act as it existed earlier, the maximum punishment that could be imposed was imprisonment for a period of one year. It is the amendment in the year 1984, that enhanced the period of imprisonment to three years. The objects and reasons are very clear as to why such an enhancement is done. Even otherwise in the light of afore-quoted judgments of the constitutional Courts it cannot but be held that the offences punishable under Section 63 of the Act are cognizable."

The court also rejected the contention of the petitioners that there cannot be vicarious liability in criminal law and the offence committed by the Company cannot be saddled upon its Directors as the complaint is against the Directors of the Company.

The court relied on Section 69 of the Copyright Act which deals with the offence by the Company and makes the Directors of the Company also liable for such offence and said, "In the light of Section 69, the stage for consideration of the submission of the learned senior counsel has not come about as the petitioners have knocked the doors of this Court on the registration of the FIR itself."

Case Title: ANI Technologies Private Limited v. State Of Karnataka

Case No: Writ Petition No.32942 of 2017

Citation: 2022 LiveLaw (Kar) 35

Date of Order: 20th Day Of December, 2021

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